WASHINGTON — Federal intelligence officials Tuesday released a trove of previously classified documents which reveal that the government misused and lacked proper controls for a secret surveillance program that tracks the telephone records of millions of Americans.
At one point in 2009, officials had improperly identified more than 15,000 telephone records for further scrutiny even though the records did not meet the proper standard for their suspect links to terrorism.
Director of National Intelligence James Clapper said that the newly-released documents, including once-secret opinions from the Foreign Intelligence Surveillance Court, "describe certain compliance incidents." The incidents, he said, "were discovered by the National Security Agency, reported to the FISC (Foreign Intelligence Surveillance Court) and the Congress and resolved four years ago.''
In a written statement, Clapper said the compliance problems "stemmed in large part from the complexity of the technology."
Yet the revelations about the government's mismanagement of the phone records program, the most politically-charged of the unauthorized disclosures by former National Security Agency contractor Edward Snowden, provide an early skeptical view of an operation that continues to raise questions among lawmakers and privacy advocates three months after details of it were made public.
The documents were released Tuesday as a result of an ongoing Freedom of Information Act lawsuit being pressed by the Electronic Frontier Foundation.
In one FISC order, dated Jan. 28, 2009, Judge Reggie Walton noted that the Justice Department had alerted the court that the government had been querying the telephone records "in a manner that appears to the court to be directly contrary'' to a previous court order authorizing the record collection and "contrary to the sworn attestations of several executive branch officials.''
In a stinging rebuke, Walton ordered the government to provide an explanation so that he could determine whether the collection authorization should be rescinded and whether those found to be in violation should be held in "contempt'' or referred to "appropriate investigative offices.''
Walton's challenge to the controversial surveillance program centers on the NSA's use of an "alert list.'' The list is a select group of telephone numbers that are suspected to have links to terrorism. Those numbers are analyzed as new telephone records stream into the agency's massive phone record data base.
Of the more than 17,000 numbers included on the list in 2009, according to the Electronic Frontier Foundation, about 1,800 met the "reasonable articulable suspicion'' standard of having links to terrorism.
As a result, Walton demanded to know who within the government's "executive branch'' knew that such an analysis process was being used "that had not been individually reviewed and determined to meet the reasonable and articulable suspicion standard.''
"How long has the unauthorized querying been conducted?'' Walton asked.
In a response to Walton, NSA Director Keith Alexander acknowledged that the government had overstepped its authority, but argued that the court "should not rescind or modify'' its order allowing for the record collection. He also asked that Walton not proceed with any contempt proceeding or refer officials for investigation.
"The government,'' Alexander said, ''is taking additional steps to implement a more robust oversight regime,'' adding that the phone record surveillance program had provided more than 2,500 telephone "identifiers'' as being in contact with undisclosed entities with some link to terrorist organizations.
Clapper insisted Tuesday that the problems have long been resolved, attributing many of the difficulties to "a lack of shared understanding'' about technology used in program's construction.
Nevertheless, the newly declassified material offered a more critical view of the program's failings than have been described in a series of heated congressional hearings about NSA's operations.
Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., who has introduced proposed legislation that would do away with the bulk collection of U.S. citizen phone records, Tuesday described the new disclosures as evidence of "systemic problems.''
"Americans deserve to understand more about the NSA's collection and use of their phone records, and in particular about the types of systemic problems,'' Leahy said. "Today's disclosure demonstrates the need for close oversight and appropriate checks and balances, which is why the Judiciary Committee will hold further hearings to hear from administration officials."